Trucker’s FLSA Retaliation and State Whistleblower Complaints Revived

Takeaway: Besides setting the minimum wage and overtime pay requirements, the Fair Labor Standards Act (FLSA) also prohibits an employer from retaliating against an employee—by discharging or otherwise discriminating against the employee—for alleging a violation, filing a complaint or initiating a proceeding under the act. Thoroughly investigate any complaints alleging FLSA violations—with the assistance of an employment attorney, if necessary.

A jury could reasonably find that an employee’s complaints were sufficient to put his employer on notice of potential violations of the Fair Labor Standards Act (FLSA) and Michigan’s Whistleblower Protection Act (WPA), the 6th U.S. Circuit Court of Appeals ruled, reversing a lower court’s grant of summary judgment for the employer.

The employee was hired as a truck driver in 2015 by the employer, a freight and package transportation company. Truckers were paid by the mile, rather than a salary or hourly rate, as well as paid a flat fee for certain activities. In addition, truck drivers could earn a per-mile safety bonus. The employer also compensated drivers for time spent performing maintenance tasks and required inspections outside their on-duty driving time.

In 2019, the company instituted a paid-time-off (PTO) policy allowing drivers five days off per year, subject to the drivers providing 30 days’ notice and working the two weeks immediately before and after the leave.  

The employee often complained about several company policies, particularly regarding its alleged failure to reimburse for servicing and repairing the trucks. He also was on record saying several times that the company’s actions were illegal and that he was going to report the company to government authorities.

Things came to a head in February 2019 when the employee got into a heated text message conversation with the company’s owner regarding scheduling PTO. During the argument, the employer again threatened to report the company to the labor board. The owner responded that he didn’t care because PTO was not legally required and Michigan is an at-will state, so he could fire the employee for any reason. The employee repeated that he’d report the company and owner to the labor board and again mentioned the company’s failure to reimburse for repairs and to pay for time spent maintaining and servicing the trucks.

The next day, the company fired the employee for insubordinate behavior, including repeated swearing and argumentative conduct toward management.

The employee filed a lawsuit claiming the company violated the FLSA by failing to pay the minimum wage rate when hours spent servicing and repairing the trucks were included as regular hours worked. He also alleged unlawful retaliation for engaging in protected activity under both the FLSA and the state WPA.

The employer moved for summary judgment, arguing that the employee’s complaints of “nonspecific wage and hour violations" could not serve as the basis for an FLSA claim. It also stated that it had no notice or knowledge that the employee was asserting rights under the FLSA specifically related to vacation pay or other issues raised in the text message exchange.

The federal district court explained that the employee had to meet four criteria to show unlawful retaliation:

• The employee engaged in a protected activity.
• The employee’s protected activity was known by the employer.
• The employer took an adverse employment action against the employee.
• There was a causal connection between the protected activity and the adverse employment action.

The district court found that the trucker met the first, third and fourth criteria, but failed to show that the employer had notice that the employee was asserting a protected right.

The court interpreted the employee’s text messages to be only about the company’s PTO policy. Because PTO is not a protected right under the FLSA or under the WPA, the complaints could not be the basis for a retaliation claim. Therefore, the court held that the employer lacked notice of a protected activity and granted it summary judgment.

On appeal, the 6th Circuit disagreed. It pointed out that although the trucker’s initial text message was about the PTO policy, other messages referred to his complaints about the company’s alleged failure to reimburse for repair costs. In addition, testimony by the company admitted that the employee had frequently complained about the reimbursement practices and had previously made threats to report the company to the labor board.

Because a reasonable jury could find that these messages had put the employer on notice that the employee intended to report it for the asserted failure to compensate drivers for repairs, summary judgment should not have been granted, the court ruled, reversing the summary judgment for both the FLSA and WPA claims and sending the case back to the district court for further proceedings.

Caudle v. Hard Drive Express Inc., 6th Cir., No. 23-1145 (Feb. 7, 2024).

Robert S. Teachout, SHRM-SCP, works in the Washington, D.C., area and is a legal editor for XpertHR, a service helping HR build successful and purposeful workplaces.